Employee Win

Ding v. Structure Therapeutics, Inc. · United States Court of Appeals for the Ninth Circuit · August 19, 2026

Leaving Arbitration Under the EFAA After Discovering a Sexual Harassment Claim: Ding v. Structure Therapeutics

The Ninth Circuit held that a fired executive who learned during arbitration discovery that her mistreatment was sex-based could leave arbitration and sue in court under the federal EFAA, and that a FEHA sex-based hostile work environment claim is a sexual harassment dispute even when the conduct is not sexual.

Case Summary

Need to Know

The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA) lets a person alleging sexual harassment or sexual assault choose court even after signing an arbitration agreement.
Filing other claims in arbitration first does not use up that choice. An employee who discovers a sexual harassment claim during arbitration can end arbitration and proceed in court.
The right can still be waived. If an employee knows the facts of a sexual harassment claim and deliberately pursues it in arbitration, or intentionally delays raising it, a court may find waiver.
Under California’s FEHA, a sex-based hostile work environment is sexual harassment even when the harassing conduct is not sexual in nature. That makes it a “sexual harassment dispute” under the EFAA.
The EFAA applies to the whole case, not only the harassment claim, so the employee could bring every claim in court.
An employee does not need to have realized at the time that the hostility was because of her sex. FEHA requires a subjectively offensive environment and a connection to sex, not contemporaneous awareness of the motive.
One judge dissented, reasoning that an employee gets one election and made it by choosing arbitration. Further review is possible.

ShortLegal Takeaway

You cannot waive a claim you did not know you had

Sex discrimination rarely announces itself. An employee is sidelined, criticized as “too aggressive,” and fired, and she may understand only that she was treated badly. The evidence that explains why, such as an internal email, a board directive, or a list of who complained, is in the employer’s files. Employees often see it for the first time in discovery. Ding recognizes that reality. The court held that an employee cannot lose the EFAA’s protection before she knows she has a sexual harassment claim.

The second holding may matter even more in California. The court held that a FEHA hostile work environment claim based on sex is sexual harassment under the EFAA whether or not the conduct is sexual. That follows the text of FEHA, which says sexually harassing conduct need not be motivated by sexual desire, and decades of California Supreme Court decisions. Employers have argued that the EFAA covers only conduct that is sexual in content. For California workers, Ding rejects that limitation.

There is a limit, and the court stated it. An employee who knows the facts and chooses arbitration anyway, or sits on a known claim for strategic reasons, can waive the right. That makes the intake conversation important. When we evaluate a case involving an arbitration agreement, we look closely at whether gendered treatment is part of the story, even if the client describes the problem in other terms, because the choice of forum may depend on it.

Useful Plaintiff-Side Facts

The CEO’s August 2021 email describing his “ideal phenotype” for the CFO role offered two men as examples, and the Board separately wanted gender diversity in the search.
She alleges that once hired she was told to “read and listen” for her first year instead of managing the investment banks handling the company’s IPO, and was assigned duties others were already doing.
The CEO relayed bankers’ complaints that she was “too aggressive” and “lectured” them. The court cited Price Waterhouse v. Hopkins on the double bind women face when aggressiveness is required but criticized.
She alleges that after she suffered visible injuries in a domestic violence incident, the CEO minimized them, discouraged her from attending executive meetings, and repeatedly asked if she wanted to reconsider her role “given her transition in life.”
He recommended her termination ten days after the incident. She alleges he gave no performance reason but cited her domestic situation, and that the job then went to a man.
The sex-based evidence, including the “phenotype” email, the Board’s diversity goal, and his reliance on the male bankers’ complaints, surfaced only in discovery.

What Happened

Dr. Ding Ding, a Wharton graduate with a Ph.D. in pharmacology and more than twenty years in biopharmaceutical equity research and investment banking, became Chief Financial Officer of Structure Therapeutics in December 2021 to help take the company public. Her offer letter required final, binding, and confidential arbitration of employment disputes with JAMS. She was fired in March 2022.

In October 2022 she filed an arbitration demand alleging discrimination, retaliation, and harassment based on national origin and her status as a domestic violence victim. For about a year the parties attended hearings, exchanged discovery, and litigated discovery disputes. In October 2023 she withdrew from arbitration, citing the company’s late payment of arbitration fees under California Code of Civil Procedure section 1281.98.

Through discovery during and after the arbitration, she obtained the CEO’s “phenotype” email, evidence of the Board’s gender-diversity goal, and evidence that the CEO relied on male bankers’ complaints in firing her. In March 2024 she sued in California state court for sex discrimination, a sex-based hostile work environment under FEHA, and domestic-violence-victim discrimination. The company removed the case to federal court in San Francisco and moved to compel arbitration. The district court denied the motion, finding that she had properly chosen court under the EFAA. The Ninth Circuit affirmed.

Starting in Arbitration Did Not Use Up the Choice

The EFAA provides that, at the election of the person alleging conduct constituting a sexual harassment or sexual assault dispute, no predispute arbitration agreement is valid or enforceable with respect to a case that relates to that dispute. The company argued that an employee who files other claims in arbitration first is categorically barred from later making that election.

The Ninth Circuit disagreed. Nothing in the statute limits when a plaintiff may raise a sexual harassment claim or exercise her rights. When Dr. Ding filed in arbitration, she was not yet a person alleging a sexual harassment dispute, and she had no claim that would have allowed her to go to court. So she could not have made an EFAA election then. She made her election once, when she filed in court on the newly discovered claim. The court added that reading the statute the company’s way would let a victim lose her right to court before she knew she had the claim, defeating Congress’s purpose of giving victims a real choice.

The court also rejected the company’s argument that a sexual harassment claim, by its nature, is experienced in real time and cannot be discovered later. A victim may experience remarks as offensive and only later understand that they were based on sex.

The Limit: Waiver

The court made clear that its ruling does not let a plaintiff start in arbitration and switch to court at any time. EFAA rights can be waived under ordinary waiver principles, meaning the intentional relinquishment of a known right. A court may find waiver where a plaintiff is aware of the facts giving rise to a sexual harassment claim and either intentionally delays bringing it or chooses to pursue it in arbitration.

The company argued that Dr. Ding knew the facts all along. The district court found no evidence that she knew she had a plausible sexual harassment claim and chose not to bring it when she started arbitration, and the Ninth Circuit held that finding was not clearly wrong.

Sex-Based Harassment Does Not Have to Be Sexual

The EFAA defines a sexual harassment dispute by reference to conduct alleged to be sexual harassment under applicable federal, tribal, or state law. So the court looked to California law. FEHA prohibits harassment because of sex, states that harassment because of sex includes sexual harassment, and provides that sexually harassing conduct need not be motivated by sexual desire. Relying on California Supreme Court decisions including Lyle v. Warner Bros. and Miller v. Department of Corrections, the court held that a sex-based hostile work environment is sexual harassment under California law even when the conduct is not sexual in nature.

Taking her allegations as true, the court found that Dr. Ding plausibly alleged a severe or pervasive, objectively and subjectively offensive environment based on her sex, comparing the conduct to the supervisor behavior upheld in Roby v. McKesson Corp. That made her case a sexual harassment dispute under the EFAA. Because the EFAA applies to the case rather than to a single claim, she was entitled to bring her entire case in court.

The Dissent

Judge Rawlinson dissented. In her view, the statute gives a person one election, and Dr. Ding made it by filing in arbitration and litigating there for over a year. She relied on election-of-remedies cases, on decisions holding that a party waives arbitration by litigating in court, and on legislative statements describing a choice between litigation and arbitration. The disagreement within the panel means the issue could draw further review.

Read the Opinion. This review discusses Ding v. Structure Therapeutics, Inc., decided August 19, 2026 by the United States Court of Appeals for the Ninth Circuit. Final reporter citation should be confirmed against the official opinion before filing or briefing.

Read on the Ninth Circuit site ↗

The Bottom Line

Starting in arbitration does not forfeit the right the EFAA gives victims of workplace sexual harassment to choose court. If you discover during arbitration that the mistreatment was because of your sex, you can end arbitration and take the whole case to court. And under California law, harassment because of sex counts even when the conduct itself is not sexual.

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This case review is for general informational purposes only and does not constitute legal advice. Court decisions are fact-specific, and the application of any ruling to a specific employment situation requires a confidential consultation. Reading this page does not create an attorney-client relationship with ShortLegal, APC.